2102518 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa held by the applicant. The dispute arose because the applicant had provided incorrect information regarding his identity, citizenship, circumstances, and family composition when initially applying for a protection visa. Specifically, the applicant claimed to be an Afghan citizen fearing persecution, when in reality, he was a Pakistani citizen with an Australian citizen daughter.

The Tribunal was required to determine whether the applicant had failed to comply with the requirements of the Migration Act 1958, specifically section 101(b), which mandates that visa applicants provide no incorrect answers. The Tribunal also had to consider whether, having found non-compliance, the visa should be cancelled, taking into account all relevant factors.

The Tribunal found that the applicant had indeed provided incorrect information in his protection visa application, which was a deliberate and calculated act to enhance his claims for protection. This non-compliance was a significant factor weighing in favour of cancellation. However, the Tribunal also considered the applicant's present circumstances, including his long period of residence in Australia (nearly 13 years), his integration into the community, his strong family, financial, and emotional ties to Australia, and his role in caring for his Australian citizen daughter and his partner who suffers from a major depressive disorder. The Tribunal gave considerable weight to the best interests of the applicant's daughter and the severe hardship that cancellation would cause to the applicant and his family.

Balancing these competing factors, the Tribunal concluded that the matters weighing against cancellation, particularly the best interests of the child and the applicant's present circumstances, outweighed the non-compliance. Accordingly, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.